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Back in September, FIREcelebrated a monumental (and long-awaited) victory when a federal district court judge in Georgia ruled that former Valdosta State University (VSU) president Ronald Zaccari and the Board of Regents of the University System of Georgia had violated the due process rights of former VSU student Hayden Barnes by expelling him from school without a hearing after Barnes had engaged in peaceful protest both on campus and online.

In addition to vindicating his rights, the ruling capped a three-year ordeal for Barnes, a decorated paramedic who finished his undergraduate studies at Kennesaw State University and now attends the University of Baltimore School of Law. Perhaps most exciting for FIREand students' rights advocates everywhere was the court's holding that Zaccari was not entitled to the defense of qualified immunity. Instead, the court found that because Zaccari ignored clearly established law holding that students facing disciplinary action must receive notice of the charges against them and a hearing, he was personally liable for damages owed to Barnes. This outcome surely sent a shiver down the spine of college administrators enforcing clearly unconstitutional speech codes. (Can't say FIREdidn't warn them!)

Early last month, Zaccari and the Board of Regents appealed the district court's ruling to the United States Court of Appeals for the Eleventh Circuit, on the ground that any denial of qualified immunity is appealable. And on October 14, Barnes cross-appealed, arguing that the court erred by dismissing his substantive due process and First Amendment claims—much as he had in a mid-September motion for reconsideration that the district court denied.

In a blog entry Erica Goldberg penned here on The Torch back in September about Barnes' motion for reconsideration, she discussed how the court got Hayden's First Amendment claim wrong:

Judge Pannell's decision is a big win for students' due process rights and for students' rights in general. The decision is a warning that administrators like Zaccari can and will be held personally accountable for flagrant constitutional violations. However, Judge Pannell's opinion did not properly protect Barnes' First Amendment rights. Judge Pannell improperly dismissed Barnes' First Amendment claim, and reconsideration of this dismissal would go a long way to preventing administrators from retaliating against protected speech in the future.

Judge Panell's opinion recounts how Zaccari called for an investigation into Barnes' "employment and grades" simply because Barnes would not "go away" and continued to raise awareness about the parking garage. Zaccari's investigation into Barnes and the subsequent expulsion were clearly motivated by Barnes' protected speech, and Judge Pannell did not rule otherwise. Yet, Judge Pannell dismissed the First Amendment component of Barnes' complaint on a technicality. Because two sentences of Barnes' complaint accused Zaccari of "conspiring" with other university staff members to violate Barnes First Amendment rights, Judge Pannell misinterpreted Barnes' complaint as raising only a conspiracy claim, and not an individual claim against Zaccari.

According to Judge Pannell's order, Zaccari could not be held liable for violating Barnes' First Amendment rights because Zaccari "alone made the decision to administratively withdraw Barnes from VSU." The court found that VSU staff, from legal counsel to college counselors, told Zaccari that Barnes did not pose a danger, so Judge Pannell allowed Zaccari to escape liability on the conspiracy claim.

Barnes' cross-appeal covers the First Amendment claim Erica discusses and more, also arguing that the court mistakenly dismissed his substantive due process claim. Barnes' complaint alleged that because Zaccari and the other defendants deprived Barnes of his First Amendment right to freedom of expression without due process of law, he was denied substantive due process. The court had dismissed this claim, holding instead that a public education is not a "fundamental right" and Barnes therefore had not suffered any deprivation of property or liberty by being kicked out of school. In his appeal, Barnes argues that his substantive due process claim was based not on a "right" to attend public school, but rather on his First Amendment right to freedom of expression.

The rest of Barnes' claims on appeal can be reviewed in his notice of cross-appeal, available here.

The dueling appeals to the Eleventh Circuit may seem to endanger Barnes' significant victory, and it's of course true that the Eleventh Circuit could decide that the district court had erred in denying Zaccari qualified immunity and finding that Barnes' right to procedural due process had been violated.

However, it's equally true—and, in ÃÛÖ­ÏãÌÒ's opinion, more likely, given the shocking facts of the case—that the Eleventh Circuit could decide that the district court's cramped reading of Barnes' First Amendment complaint incorrectly allowed Zaccari to escape responsibility for retaliating against Barnes for exercising his right to free speech. After all, as Erica details in the excerpt above, the district court relied on a technicality in dismissing Barnes' First Amendment claims—a disappointing result, given that the facts make abundantly clear that Barnes suffered on account of his speech. (If not for his speech, would he have been "administratively withdrawn"? Of course not!) Bringing the case before the Eleventh Circuit allows Barnes another shot at having his rights—all of his rights—vindicated. Of course, we'll keep you posted here on The Torch.